U.S. v. Lee, 94-1624

• Decision Date: 02 February 1995
• Docket Number: No. 94-1624,94-1624
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ervin LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 674

46 F.3d 674

UNITED STATES of America, Plaintiff-Appellee, v. Ervin LEE, Defendant-Appellant.

No. 94-1624.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 30, 1994.

Decided Feb. 2, 1995.

Barry Rand Elden, Asst. U.S. Atty., John Collins (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

John E. Horn, Tinley Park, IL (argued), for defendant-appellant.

Before BRIGHT, ^* BAUER and COFFEY, Circuit Judges.

BRIGHT, Circuit Judge.

The district court denied Ervin Lee a reduction of his ten-year prison sentence in response to the government's motion under Federal Rule of Criminal Procedure 35(b). Lee brings this appeal.

The underlying claim by Lee for reduction of sentence has its roots in the extensive and convoluted prosecution of the El Rukn street gang. Defendant Lee was indicted on October 26, 1989, with numerous other gang members. Lee became a cooperating witness and has testified in several proceedings relating to the prosecution and post-conviction hearings for several of the convicted gang members. Post-conviction proceedings addressed allegations and proof of prosecutorial misconduct in the conduct of some of the criminal cases and resulted in the granting of several new trials by Judge Aspen, Judge Conlon and Judge Holderman, the latter who presided over the instant matter.

After somewhat turbulent sessions of hearings during which the trial judge directed inquiry into (1) the views of alleged misconduct of government attorneys in the conduct of post-conviction hearings in the El Rukn cases, (2) the adequacy of disclosures by the assistant United States attorneys in the present proceedings and (3) the judges' assertions of doubts over the truthfulness of defendant Lee in prior post-conviction proceedings and statements made to FBI and other government investigators, the district court denied Rule 35(b) motion. ¹

In our view, the record supports a reduction in Lee's sentence. A review of the hearings indicates that the trial judge improperly focused the inquiry and interrogation on prosecutorial misconduct in the El Rukn proceedings, rather than giving fair consideration to the issues presented by Lee. Accordingly, we reverse and remand for further proceedings.

I. BACKGROUND

We briefly set forth the facts. Lee initiated the present proceedings by filing a "Motion to Vacate Sentence and Compel the Government to Honor its Agreement to Move to Reduce Sentence or in the alternative, Motion to Withdraw Guilty Plea."

That motion asserted, among other things, that on June 29, 1990, defendant pled guilty to count one, violation of 18 U.S.C. Sec. 1962(d) (racketeering activity) and count three, violation of 21 U.S.C. Sec. 846, conspiracy to distribute various controlled substances. Lee received a ten-year sentence under a written plea agreement, said sentence to be concurrent with any sentence imposed in a pending case before Judge Milton I. Shadur, 89 CR 580-11, and to be concurrent to any sentence imposed on pending Illinois state charges in Cook County, 89 CR 19658 and 90 CR 3140. Pursuant to the plea agreement, defendant testified at five different trials between April 1991 and April 1992. Lee also testified at three post-trial hearings before Judge Holderman, Judge Conlon and Judge Aspen between October 1992 and July 1993.

According to the petition, Lee asserted that Assistant United States Attorneys Hogan and Poulos promised that they would move for reduction of sentence on the basis that Lee had rendered subsequent assistance to the government after one year and had exceeded the cooperation initially contemplated of testifying at the most, two trials, rather than five. In addition, the petition noted a change in circumstances. The prosecution subsequently needed Lee's testimony in a state murder prosecution of an El Rukn defendant who had received a dismissal in federal court.

At the time of filing the petition under Sec. 2255, the federal prosecutors had declined to file a Rule 35 motion for several reasons, including one that Judge Holderman would not accept a Rule 35 motion from the prosecutors because of the conflict between the judge and Assistant United States Attorney Hogan. The petition requested that the ten-year sentence be vacated, and that the prosecution honor its promises and file a Rule 35 motion to reduce sentence or grant Lee's motion to withdraw his guilty plea.

The government's response to defendant Lee's memorandum in support of jurisdiction for his appeal to this court relates the earlier proceedings. The response states crucial and undisputed facts in the record:

5. Contemporaneous with the filing of the Lee motion, the government negotiated and entered into plea agreements with approximately eight El Rukn defendants whose motions for new trial were pending before Judge Holderman in United States v. Johnny Brown et al., 89 CR 909. Those defendants, like defendant Lee had served as Ambassadors in the El Rukns. The government agreed to sentences of six-years incarceration for those defendants. As a result, these defendants, who did not co-operate with the government, were subject to a shorter term of incarceration than defendant Lee, who had co-operated with the government.

6. The government deemed this sentencing imbalance to be unfair to defendant Lee. Thus, irrespective of the pending Lee motion, the government agreed to move to reduce defendant Lee's sentence. On February 3, 1994, the parties filed an agreed motion to reduce Lee's sentence pursuant to 28 U.S.C. Sec. 2255 (the 'agreed Sec. 2255 motion'). The parties relied upon the interests of justice and sentence uniformity amongst defendants of similar culpability as support for that motion. The district court, however, denied the agreed Sec. 2255 motion and set a hearing date for the Lee motion.

THE RULE 35(b) MOTION

7. On March 4, 1994, prior to the hearing on the Lee motion, defendant Lee orally amended that motion. Defendant Lee struck the portions of the Lee motion seeking to vacate his sentence and to withdraw his guilty plea. He further informed the court that he intended to proceed solely on his request for specific performance of an alleged commitment by the government to file a motion to reduce his sentence under Rule 35(b) of the Federal Rules of Criminal Procedure. 3-4-94 Tr. at 3.

8. At that point, while not acknowledging any commitment to do so, the government again expressed its desire to have defendant Lee's sentence reduced and agreed to file a Rule 35(b) motion. Id. at 4. The government, however, expressed its concern about the legal basis for such a motion. Id. at 5. The district court then postulated that the additional information provided by defendant Lee at the various post-trial hearings may provide a sufficient basis for a Rule 35(b) motion. Id. at 6. Based upon those representations, the government agreed to file a Rule 35(b) motion.

9. On March 10, 1994, the government filed a Rule 35(b) motion to reduce defendant Lee's sentence (the 'Rule 35 motion'). In filing the Rule 35 motion, the government did not take any position with respect to the allegations in the Lee motion concerning a commitment by the government to file such a motion. Instead, it was the government's position that filing the Rule 35 motion, which was the substantive relief sought by defendant Lee, mooted the Lee motion. 3-14-94 Tr. 138.

10. On March 14, 1994, the district court conducted a hearing on the Rule 35 motion. During that hearing, defendant Lee informed the district court that the Rule 35 motion satisfied his request for specific performance. 3-14-94 Tr. 2. Thus, it appeared that the Lee motion had become moot. The district court never entered an order purporting to adjudicate the Lee motion. Moreover, at no point did defendant Lee request the district court to enter an order compelling the government to file a Rule 35 motion. In fact, the government had filed such a motion.

Government's Response at 3-5, filed Apr. 21, 1994 (footnotes omitted). The district court did not rule on Lee's Sec. 2255 motion but did deny the Rule 35 motion.

In this case, the record shows that Lee's substantial assistance to the government concerned information or evidence not known by the defendant until one year or more after imposition of the sentence. The government's belated Rule 35 motion therefore complies with the rule. The district court acquired jurisdiction to consider the motion and thus a proper appeal lies from its order refusing Rule 35 relief. See United States v. McAndrews, 12 F.3d 273, 276-79 (1st Cir.1993).

II. DISCUSSION

In this appeal, Lee raises the following issues:

1. Whether there was an enforceable agreement for the government to make a Rule 35(b) motion to reduce the sentence.

We do not address this question because the government made such a motion.

2. Whether the government failed in its bargain by faint or half-hearted efforts.

The record indicates that the government properly pursued the motion.

3. Whether the district court abused its discretion in denying the Rule 35(b) motion. We focus our opinion on this issue.

We are of the view that at the hearing, the district court intermixed Lee's claims with its criticisms of procedures and conduct by the former United States attorneys relating to El Rukn gang cases thereby confusing the proceedings and depriving Lee a fair opportunity for consideration.

A few excerpts from the transcript may illustrate the dichotomy. The United States Attorney's Office took a consistent position that it believed that Lee should get some relief from his ten-year sentence. The government was reluctant initially to file a Rule 35 motion, expressing an unwillingness to acknowledge a firm commitment to do so by the prior prosecutors, Messrs. Hogan and Poulos, but then agreed to file the Rule 35 motion:

MR. ELDEN [Assistant United States Attorney]: Judge, we will file a Rule 35. We would like to...